Clause 11 - Bars to extradition

Extradition Bill – in a Public Bill Committee at 4:30 pm on 9th January 2003.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:30 pm, 9th January 2003

I beg to move amendment No. 151, in

clause 11, page 5, line 39, at end insert '.

Photo of Anne Begg Anne Begg Labour, Aberdeen South

With this it will be convenient to take the following amendments: No. 152, in

clause 11, page 6, line 2, at end insert ';

(i) the legal interpretation of the territory in which the offences were committed'.

New clause 1—Passage of time—

'A person's extradition to a Category 1 territory is barred by reason of the passage of time if it appears it would be unjust or oppressive or not proportional in all the circumstances to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).'

New clause 2—Territorial bar—

'A person's extradition to a Category 1 territory is barred where the warrant relates to offences which—

(a) are regarded by the law of the relevant part of the UK as having been committed in whole or in part in the territory of the UK or in a place treated as such; or

(b) have been committed outside the territory of the Category 1 territory and the law of the relevant part of the UK does not allow prosecution for the same offences when committed outside its territory.'

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:45 pm, 9th January 2003

This is simply a paving amendment to bring new clause 1 into order with this clause. It seeks to provide a safety net. Outside organisations have rightly drawn attention to the fact that the Bill does not give ultimate protection of the subject, even in a case in which extradition would be considered unjust or oppressive. New clause 1 proposes that a person's extradition to a category 1 territory should be

''barred by reason of the passage of time if it appears that it would be unjust or oppressive or not proportional in all the circumstances to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large.''

I will listen with interest to what the Minister has to say about that. I hope that he will concede that there should be some ultimate underpinning of the wide-ranging new powers so that there could be an argument about injustice or oppression because of

the lapse of a huge length of time. That is particularly important because some of the offences mentioned in part 1 are very vague.

If we were discussing terrorism or the most serious sorts of crime and only those crimes were covered by part 1—we believe that part 1 provisions are appropriate only to terrorist offences—the situation might be different. We are, however, discussing a wide range of offences, some of which are not known to English law, and it therefore seems to us that there should be an ultimate safeguard.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

None of us wants extradition to take place in circumstances that would be unjust to the fugitive. The Bill provides a number of important safeguards to ensure that that does not happen. In this case, the key safeguard is clause 21, which sets out the protection given by the European convention on human rights. If extradition would breach a fugitive's rights under the convention, it cannot take place.

I am confident that that would apply in practice. A person's representative would be able to advance an argument that the passage of time had made extradition unjust, and the district judge would be able to consider the matter and satisfy himself as to whether the extradition should be ruled out because of the passage of time. That matter is covered by the ECHR provision, and the ability to make that argument is contained in the Bill.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I shall express some surprise, because I had assumed that, when I sat down, someone from the Liberal Democrats would move their new clause 2 and paving amendment No. 152.

Perhaps, by talking for a little while, I will give the two Liberal Democrat spokesmen the opportunity to look at their amendments and to see whether they want to talk about later, assuming that they succeed in persuading you, Miss Begg, to allow them to do so.

I am not prepared to see the matter provided for by the ECHR alone. The ultimate safeguard should be included in the Bill, and many external organisations also want to see that happen. From the moderate and reasonable way in which the Minister responded to me, I do not believe that he is averse to that idea. May I therefore ask him to confirm—and I am happy to give way for him to do so—that he will examine our submissions, and those that he and his officials have received from external organisations, and to contemplate the possibility of introducing something along those lines. Our own wording is not sacrosanct, but I want something in the Bill to specify the kind of protection that the Minister has said is already included.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I was waiting to see whether the hon. Gentleman would raise that issue. He is obviously so content with part 2 that he has not noticed that it contains provisions on time bars. However, I will consider whether it would be appropriate to mirror those provisions in part 1, although I am certain that the point is already covered, and that the argument could be made.

I do not think that we would make any difference by incorporating what is in part 2 into part. Nor would it make any difference to leave things as they stand. I am therefore more than happy to consider the matter, as the hon. Gentleman requested.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am grateful. The Minister makes the point that these amendments seek to introduce what is in part 2 into the part 1 provisions. The wording is effectively the Government's own wording from part 2. That is why we and other organisations have said that it should be there. I am grateful that the Minister is going to consider that. Perhaps if I sit down this time, the hon. Member for Orkney and Shetland will belatedly speak to his amendments. I may have the opportunity, if I am lucky, to comment on them.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

My hon. Friend the Member for Torridge and West Devon and I had rather got ahead of ourselves and were divvying up responsibility for subsequent clauses. We had assumed, as normally would be the case, that the hon. Member for Surrey Heath would be talking for some time to come. We were caught napping by his brevity, and I apologise to the Committee for that.

New clause 2 is fairly straightforward. It speaks for itself. On paragraph (a), it would be nonsensical to extradite someone where the locus of the offence was part of the United Kingdom, in whatever circumstances that might arise. The obvious example would be within the territorial waters of the UK. On paragraph (b), there is an element of double actionability or dual criminality. If the offence has been committed outside the category 1 territory, it would be extraditable only if we were competent to prosecute in this country an offence that was committed furth of our jurisdiction, which places it in a very rare category of offences. I do not know whether my hon. Friend the Member for Torridge and West Devon has any further illumination for the Committee.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

As my hon. Friend said, we were somewhat wrong footed. We were relying on the hon. Member for Surrey Heath.

The new clause has been suggested by Justice and is extremely important. The abolition of the dual criminality requirement in relation to the 32 serious offences contained in article 2.2 of the European arrest warrant means that a request for extradition under the European arrest warrant need not be based on an offence known to UK law. Thus, if a request were made on the basis of an offence in another member state, which is not an offence in the UK, a defendant would lose the protection of the rule against double jeopardy using the proposed text in the Bill. I presume that that is not the Government's intention. The European arrest warrant clearly states that a final judgment on the same acts shall be a mandatory bar to surrender. Implementing legislation should reflect that broader notion of double jeopardy in order effectively to protect the rights of individuals. I look forward to hearing the Minister's comments.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman is fortunate to have got his act together in time. He is indebted to the

hon. Member for Surrey Heath for holding up the proceedings to enable him to do so.

The effect of new clause 2 is twofold. It would prevent extradition where any part of the offence occurred in the United Kingdom and in cases where the offence occurred outside the requesting state but for which the UK would not claim extra-territorial jurisdiction. It would be wrong to preclude extradition simply because some part of the offence occurred in the UK. Naturally, where the substantive part of a crime occurs in the UK we would want to prosecute the perpetrator. But it is possible to foresee circumstances in which the minor part of a crime, such as some of the preparation for it, takes place in the UK, and the major criminal activity takes place in the other, part 1 country. Crime is becoming more international. I do not believe that Opposition Members want to rule out extradition, and the other country would have a far stronger case to prosecute than the UK would.

A practical example may help. In a complicated computer fraud, a single e-mail that formed part of it could have been sent from the UK, notwithstanding the fact that every other part of the crime took place in France and the victims were all French. However, the proposed change would oblige us to refuse the extradition request. Surely that cannot be right.

The second leg of the new clause would mean that we did not extradite in cases in which the offence occurred in a third country, but the offence was not one for which the UK would take extraterritorial jurisdiction. That could create problems. Germany, for instance, takes jurisdiction over anything done by its citizens. It would therefore take jurisdiction over a German who beat someone up while on holiday in France and then fled to the UK. Obviously, the French would have an interest in prosecuting the case, but if the victim were also a German, it might make more sense for the Germans to pursue it. All the witnesses would have returned to Germany, and the hearing could be conducted there.

Clause 63(5) would allow the Germans to extradite the German suspect from the UK, but under the Liberal Democrat amendment, because we do not take extraterritorial jurisdiction over the offence of grievous bodily harm, we would be unable to do so. People should not be able to evade justice simply because they cross the border between different jurisdictions.

I hope that the hon. Gentleman accepts that there are good reasons not to accept the new clause. Incidentally, I shall be extra careful in listening to the interpretations that he places on what I have said—I am sure that Hansard will be, too—because he seems to go a bit beyond it on the odd occasion. He seems to infer that I have said things that in fact I have been very careful not to say.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I note that the Minister is smiling ruefully. Of course I shall take note of what he has said on this matter as well as the assurances that he has given us on many others. We shall study Hansard carefully. I have noted in particular what he says about

the new clause. We shall consider his words carefully and we may return to the matter on Report.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Now that we have, slightly belatedly, reached the debate on the Liberal Democrat new clause, I should say that Conservative Members share the concerns expressed by Justice and the Liberal Democrats in this respect. We, too, will consider what the Minister said about our new clause and will not press it to a vote at this stage, but we hope that he may be able to do a little more on the passage of time issue. Again, we may need to return to that.

I shall give a couple of practical examples, because I have had the benefit of some advice from one of the specialist firms that deals with extradition cases: Victor Lissack and Roscoe. When they consider whether the passage of time reference is needed in part 1 as well as in part 2, it may help the Minister and his officials to be aware of the examples that it gave. That firm, to whose partner, Robert Roscoe, I am indebted, said that it recently, some 15 years after the alleged commission of the offence, had a case from Turkey in which extradition was sought for offences that had occurred in the late 1980s. That is particularly relevant to the concerns that I share with my hon. Friend the Member for Stratford-on-Avon that Turkey may one day become a member of the EU and therefore benefit from the part 1 provisions. I have expressed my views about whether Turkey is an appropriate entrant to the EU; unless it completely transforms its human rights record, I do not think that it should be. Nevertheless, Turkey wants to become an EU member, and if it is successful, it could benefit from the part 1 powers.

The Turkish application was made despite the fact that Turkey's Government were aware that the defendant was living openly in the United Kingdom, where he had been granted resident status. Furthermore, the Turkish Government had contacted the United Kingdom about commencing extradition proceedings three or four years previously, but had then dallied before lodging the request for extradition. Fifteen years is an extraordinary passage of time, which is why we need the protection.

Another brief example involves Italy, which is obviously an EU member. Victor Lissack and Roscoe acted for an Italian who had been living in the country for several years. He was living openly and travelling internationally on his passport. The Italians sought his return for an alleged offence that had occurred in the late 1970s but did not try to commence extradition proceedings until the late 1990s. That is a gap of about 20 years, which is why we need the safeguard in part 1 to mirror what is already in part 2. I hope that the Minister will undertake to examine that.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.